State v. Becerra, S-00-711.

• Decision Date: 06 April 2001
• Docket Number: No. S-00-711.,S-00-711.
• Citation: 624 N.W.2d 21,261 Neb. 596
• Parties: STATE of Nebraska, Appellee, v. Eusebio L. BECERRA, Appellant.
• Court: Nebraska Supreme Court

624 N.W.2d 21

261 Neb. 596

STATE of Nebraska, Appellee, v. Eusebio L. BECERRA, Appellant.

No. S-00-711.

Supreme Court of Nebraska.

April 6, 2001.

Eusebio L. Becerra, pro se.

Don Stenberg, Attorney General, and Susan J. Gustafson, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

After conducting an evidentiary hearing, the district court for Sarpy County entered an order denying Eusebio L. Becerra's motion for postconviction relief. This is an appeal from that order. Finding no error, we affirm the judgment of the district court.

BACKGROUND

Following a 1996 jury trial, Becerra was convicted of kidnapping and use of a firearm in the commission of a felony. He was sentenced to life imprisonment on the kidnapping charge and to a consecutive term of imprisonment of 2 to 5 years on the use of a firearm charge. We affirmed the convictions and sentences on direct appeal in State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998). The facts upon which the convictions are based are set forth in detail in that opinion, and we briefly summarize them here.

Acting in concert with a person he identified as Daniel Gonzalez, Becerra abducted Melvin Washington, Jr., on January 5, 1996, as Washington was leaving his place of employment in Omaha. Washington testified at trial as a witness called by the State, and Becerra testified in his own defense. The two men gave differing accounts of the abduction.

Washington testified that as he left his place of employment at approximately 6:30 p.m. on January 5, 1996, he observed a red two-door Blazer occupied by three men including Becerra, to whom he owed money for drugs. According to Washington, Becerra exited the vehicle holding a 9-mm handgun and inquired about the money as he loaded the weapon. After a conversation between Becerra and Gonzalez in which the two men discussed what they were going to do with Washington, Becerra and Washington entered a vehicle owned by Washington's sister while Gonzalez reentered the Blazer with the third, unidentified individual. According to Washington, Becerra held the gun on him and ordered him to follow the Blazer. While driving around the city in this fashion, Becerra repeatedly told Washington that he had "messed up." Eventually, the two vehicles stopped and all four men entered an Oldsmobile. According to Washington, he was ordered into the rear seat of the Oldsmobile with Gonzalez, who was holding an assault rifle aimed at Washington's feet. They then drove around Omaha for an additional period of time. Washington testified that he believed the men were looking for a place to execute him because after exiting the vehicle and checking a warehouse, Becerra told Gonzalez that there were too many cars in the area and that it was not a good spot.

Washington testified that the men then drove him to Lake Manawa in Iowa and that Becerra told him to remove his clothing. Washington complied, taking off everything except his T-shirt, boxer shorts, and socks. He was then ordered out of the vehicle, where the temperature outside was below freezing. Washington testified that Becerra and Gonzalez were each holding weapons. Becerra continued telling him that he had "messed up" and instructed Washington to come toward them so that Becerra could place his weapon in Washington's mouth. Washington did not comply but turned to walk away, and as he did, Gonzalez and Becerra followed and began kicking and beating him. Washington testified that Becerra hit him in the face with the handgun and that Gonzalez hit him in the back with the rifle. Washington retaliated by striking both Becerra and Gonzalez and was able to escape by running across the frozen lake and hiding in a snowbank until Gonzalez and Becerra left the area. Washington then made his way to a nearby home where he sought and obtained assistance.

In his trial testimony, Becerra denied that he had ever sold drugs but admitted that he arranged a sale of drugs by Gonzalez to Washington for which Washington failed to make payment. Becerra testified that Gonzalez was upset at this and threatened Becerra and his family with harm if the debt was not paid. Becerra testified that on January 5, 1996, Gonzalez picked him up at his home and told him that he needed the money and that Becerra participated in the abduction because he had no other choice. Becerra denied possessing a weapon or harming Washington in any way. He admitted that Gonzalez threatened Washington during the abduction, but claimed that his role was limited to translating between Spanish and English to enable Gonzalez to communicate with Washington.

In his direct appeal, Becerra contended that the evidence was insufficient to sustain his conviction and that he was denied effective assistance by his trial counsel, who was not the same attorney who represented him on appeal. We noted that the evidence clearly supported the conclusion that Becerra had abducted and restrained Washington on January 5, 1996. As to the element of intent, under the standard by which we review the sufficiency of evidence to support a criminal conviction, we held that "[t]here can be no serious dispute that the evidence regarding Washington's abduction and continued restraint, when taking the view most favorable to the State, sufficiently establishes Becerra's intent to terrorize Washington." State v. Becerra, 253 Neb. 653, 660, 573 N.W.2d 397, 403 (1998). We also held that Becerra failed to establish ineffective assistance of counsel based upon allegations that his trial counsel failed to object to certain exhibits and leading questions.

We then addressed Becerra's contention on direct appeal that his trial counsel was ineffective because he did not request a lesser-included offense instruction on first degree false imprisonment. Noting that it is the "intent to terrorize which distinguishes kidnapping from false imprisonment in the first degree," we held that first degree false imprisonment is a lesser-included offense of kidnapping and overruled the holding to the contrary in State v. Newman, 5 Neb.App. 291, 559 N.W.2d 764 (1997). (Emphasis in original.) Becerra, 253 Neb. at 665, 573 N.W.2d at 405. However, we concluded that the record was insufficient to determine the second prong of the test utilized to determine whether a lesser-included instruction could have been given, i.e., whether "the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense." Id. at 664, 573 N.W.2d at 405.

On January 28, 1999, Becerra, acting pro se, filed a verified motion for postconviction relief alleging that he was deprived of his constitutional right to effective assistance of counsel at trial and on direct appeal. Becerra alleged that his constitutional right to effective assistance of counsel was violated: (1) by his trial counsel's failure to discuss with him a plea bargain offer allegedly made by the prosecution; (2) by his trial counsel's failure to perform adequate discovery, resulting in trial counsel's failure to object to alleged misrepresentations by a law enforcement officer who testified at trial regarding a statement made by Becerra; (3) by his trial counsel's failure to understand the charges against Becerra, thus prejudicing his defense; and (4) by his appellate counsel's failure to properly raise, on direct appeal, the issue of his trial counsel's inability to understand the charges. Becerra also moved for appointment of counsel. On or about February 2, an attorney was appointed to represent Becerra in this proceeding. However, on July 30, an attorney retained by Becerra entered an appearance on his behalf, and his appointed counsel was granted leave to withdraw on August 10. Becerra's retained counsel represented him throughout the remainder of the postconviction proceedings before the district court.

On April 24, 2000, the district court held an evidentiary hearing on Becerra's postconviction motion. The former deputy Sarpy County Attorney who prosecuted Becerra was called to testify on Becerra's behalf. The prosecutor stated that he did not offer a plea agreement to Becerra and did not recall any discussions with Becerra's trial counsel on this subject. He explained that if he had been approached, he would have entered into plea negotiations.

Becerra also testified at the evidentiary hearing. He stated that he first became aware that a conviction for kidnapping would result in a mandatory life sentence when he was sentenced for his conviction. On cross-examination, Becerra stated he did not remember the judge's informing him of the charges and penalties he was facing. He stated that he was initially represented by the Sarpy County public defender's office, but subsequently retained the attorney who represented him at trial. According to Becerra, his trial counsel informed him that he was facing 7 to 14 years of imprisonment for the kidnapping charge and 3 to 5 years of imprisonment for the use of a deadly weapon to commit a felony charge. Becerra also indicated that his trial counsel never advised him of the possibility of pleading to a lesser charge. He noted that he would have pled guilty to a lesser charge if he had known he was facing life in prison. He also contended that his trial counsel did not discover a police report which contained a statement by Becerra regarding the events of the evening in question. On cross-examination, Becerra stated that he was not sure if the report was in his retained trial counsel's file. However, he did acknowledge that he spoke to his retained trial counsel about the statement he had made to police.

Becerra's trial counsel testified at the evidentiary hearing. He stated that he asked Becerra before trial if he wished to enter into plea negotiations and that Becerra told him emphatically that he did not. He also testified that he discussed with Becerra the...